9. Hadith Al-Qadha, An Age Of Jungle Justice VI

Injustice begins the moment a judge begins to show bias towards or against any of the parties before him in any judicial proceedings. He must be completely impartial throughout, and this must be evident in his ruling. The Qur’an commands:

O you who believe! Stand up firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be he rich or poor, Allah is more entitled to both (than you). So follow not whims, lest you may avoid justice. And if you distort your witness or refuse to give it, verily Allah is Ever Well-Acquainted with what you do.1

During the rule of ‘Umar, a terribly messy case was brought before him involving one of his close friends. Let us see how he handled it. Imam al-Tahawi (d. 321 H) records:

A man went to ‘Umar b. al-Khaṭṭab, may Allah be pleased with him, and testified against al-Mughirah b. Shu’bah. So the colour of ‘Umar changed. Then, another man came and testified. Therefore, the colour of ‘Umar changed (further). Then, another man came and testified. As a result the colour of ‘Umar changed (even further) such that we recognized that in him, and he denied (the charge without investigation) due to that. Lastly, another man came, demonstrating with his hands. So, he (‘Umar) said, “What do you have (to say), O remover of the punishment!” Abu ‘Uthman (the sub-narrator) then shouted to imitate the shout of ‘Umar, such that I (‘Abd al-Karim) was agonized to the point of fainting. He (the fourth man) said, “I saw a disgusting affair.” He (‘Umar) said, “All praise be to Allah Who did not allow Shayṭan to rejoice at the misfortune of the Ummah of Muhammad.” So, he (‘Umar) ordered that those men be whipped (for allegedly lying against al-Mughirah).2

‘Allamah al-Albani (d. 1420 H) has copied it into his al-Irwa, and states about it:

Abu Bakrah, Nafi’ and Shibl b. Ma’bad testified against al-Mughirah b. Shu’bah, that they saw it (i.e. the adultery), as they saw the kohl stick (i.e. the male private organ of al-Mughirah) inside the kohl container (i.e. the female private organ of the woman). But Ziyad came, and ‘Umar said, “Here comes a man who will not testify except with the truth.” So, he (Ziyad) said, “I saw a disgusting scene, and a spectacle.” So, ‘Umar punished them with lashing.4

Al-Haythami declares:

رواه الطبراني ورجاله رجال الصحيح

Al-Tabarani records it, and its narrators are narrators of the Sahih.5

When the issue between Abu Bakrah and al-Mughirah b. Shu’bah occurred, Abu Bakrah said, “Desist from or give up concerning our Salat, because we will not pray behind you.” So, he (al-Mughirah) wrote to ‘Umar about his affair. Therefore, ‘Umar (too) wrote back to al-Mughirah thus: “To begin, an act of yours has been reported to me. If such-and-such (i.e. Abu Bakrah) is corroborated against you, it would have been better for you to have died before this day.” So, he (‘Umar) wrote to him and the witnesses to come to him. When they got to him, they testified, and Abu Bakrah, Shibl b. Ma’bad, and Abu ‘Abd Allah Nafi’ testified. As such, ‘Umar said when these three people testified, “Four (people) oppressed al-Mughirah.” His matter was very unbearable for ‘Umar. So, when Ziyad stood to testify, he (‘Umar) said, “You will testify with the truth, Allah willing.” Then he (Ziyad) testified, saying, “As for adultery, I do not testify in favour of it. However, I saw a disgusting affair.” As a result, ‘’Umar said, “Allah Akbar! Punish them!” So, they (the first three witnesses) were lashed. After Abu Bakrah had been beaten, he stood up and said, “I testify that he (al-Mughirah) committed adultery”. So, ‘Umar was about to repeat the punishment upon him. But, ‘Ali said, “If you lash him (again), then you must stone your companion (i.e. al-Mughirah).” Due to this, he (‘Umar) left him, and did not beat him. Thus, he (Abu Bakrah) did not falsely accuse anyone of adultery again after that.6

‘Allamah al-Albani has this comment about this exact report:

أخرجه ابن أبى شيبة وعنه البيهقى (8/334 ـ 335) . قلت: وإسناده صحيح.

It is documented by Ibn Abi Shaybah, and from him bu al-Bayhaqi (8/334-335). I say: Its chain is sahih.7

After Abu Bakrah and his two companions had testified against al-Mughirah, Ziyad came. So, ‘Umar said, “He is a man who will never testify, Allah willing, except with the truth.” He (Ziyad) said, “I saw a spectacle and an evil assembly”. So, ‘Umar said, “Did you see the kohl stick (i.e. the male private organ of al-Mughirah) enter the kohl container (i.e. the female private organ of the woman)?” He (Ziyad) replied, “No.” Therefore, he (‘Umar) ordered that they (Abu Bakr and his two companions) be whipped.8

• Abu Bakrah and some other people filed a criminal complaint of adultery against al-Mughirah b. Shu’bah with ‘Umar.

• Al-Mughirah was a close friend of ‘Umar.

• ‘Umar summoned the accused – who was his friend – and the Abu Bakrah team to his court for the trial.

• As Abu Bakrah and two other people testified, ‘Umar – the judge – increasingly blushed. Convicting and sentencing al-Mughirah was very unbearable for him. So, he dismissively denied the reports of Abu Bakrah and his team.

• It was a case of adultery, and four witnesses were required. Ziyad was the fourth to testify. Like others, he came all the way from Basra (where al-Mughirah was governor for ‘Umar prior to the trial) to Madinah to testify against al-Mughirah in a case of adultery. But, before he began his testimony, ‘Umar made some direct moves to entice him and to intimidate him.

• First, ‘Umar called him “the remover of the punishment”. This was an obvious suggestion to Ziyad that he must contradict his colleagues. He simply had no other choice but to remove the sentence of death still hanging over the neck of al-Mughirah.

• ‘Umar also described him as the one who would testify with the “truth”. This was another clear signal to him to contradict his colleagues. It showed that the khalifah had blacklisted Ziyad’s colleagues for testifying against al-Mughirah. If Ziyad wanted to get into the good books of the powerful khalifah, he must tell only what ‘Umar would accept as the “truth”.

• Finally, ‘Umar shouted at him, with such distressing force that it could cause some people to pass out! The intention, obviously, was to unsettle and intimidate him. Going against the khalifah could have highly devastating consequences. The message was unmistakable.

• So, Ziyad got the signal, and went against his colleagues. He denied having seen a sexual penetration. One wonders why then he had taken all the pain to come to Madinah from Iraq! Was it not to testify against al-Mughirah for adultery? Something clearly was not right here. Ziyad was altering his testimony in the light of the new circumstances. In any case, he admitted to seeing “a disgusting affair” and “a disgusting scene”, apparently involving al-Mughirah and the accused woman, which involved “an evil assembly” of both accused persons.

• ‘Umar – the judge – became joyous, thanking Allah, and ordered Abu Bakrah and his colleagues to be flogged for allegedly lying against al-Mughirah!

• ‘Umar intended to re-lash him but ‘Ali, as usual, saved Abu Bakrah with his knowledge.

To ‘Umar, this was fair, impartial hearing!

An interesting side to this discussion is that ‘Umar actually did not ordinarily seem to place much value on the Qur’anic requirement for four witnesses in the case of adultery. For instance, he convicted a woman simply for having only a six-month pregnancy! He never asked for any four witnesses. Rather, he did not even request for any testimony from anyone! However, when his close friend was involved, he became extraordinarily strict with the requirement, and displayed brutal bias in favour of the accused throughout the proceedings.

The testimony of Ziyad itself embarrassingly reveals the direct influence of ‘Umar’s intimidation and enticement over the former. Al-Hafiz Ibn Hajar al-‘Asqalani explains the circumstances of al-Mughirah’s alleged adultery:

The story of al-Mughirah has been transmitted THROUGH SEVERAL CHAINS. Its summary is that al-Mughirah b. Shu’bah was the governor of Basra for ‘Umar. Abu Bakrah, whose real name was Nafi’ al-Thaqafi, accused him (of adultery). He (Abu Bakrah) is a well-known Sahabi. There was Abu Bakrah. There was (also) Nafi’ b. al-Harith b. Kildah al-Thaqafi, who is counted among the Sahabah.

There was Shibl b. Ma’bad b. ‘Utaybah b. al-Harith al-Bajali (as well), and he was considered to be among those (Sahabah) who witnessed both the Jahiliyyah and the Prophetic era. (Finally), there was Ziyad b. ‘Ubayd – who was later called Ziyad b. Abi Sufyan – (and he was) his (Abu Bakrah’s) brother from their grandmother, Sumayyah freed maid of al-Harith b. Kildah.

THEY ALL HAD GATHERED TOGETHER and had seen al-Mughirah in a secret affair with the woman called al-Riqṭah Umm Jamil bint ‘Amr al-Afqam al-Hilaliyyah, and her husband was al-Hajjaj b. ‘Utaybah b. al-Harith b. ‘Awf al-Jashmi.10

There were four of them together, including Ziyad. They all together saw al-Mughirah having a secret affair with Umm Jamil, whose husband was al-Hajjaj. The other three witnesses saw al-Mughirah’s male organ entering Umm Jamil’s female organ, and all of these three were totally trustworthy Sahabah of the Messenger, by Sunni standards. How then on earth did Ziyad miss that?! It seems fair to conclude that he was deliberately concealing the most crucial part of his testimony. It was simply impossible for him not to have seen what the others saw, especially as he was not described as suffering from any eye problems.

Moreover, what really did Ziyad mean by having seen “a disgusting affair” between the couple? Was he not actually implying the adultery of al-Mughirah and Umm Jamil? From the look of things, Ziyad saw what the three Sahabah saw, but decided to be ambiguous and to double-speak after ‘Umar enticed and intimidated him. If the khalifah had not intervened, he most probably would have only corroborated his co-witnesses.

Anyway, there are some damning consequences in this particular case for Sunni Islam. Abu Bakrah, Shibl and Nafi’ b. al-Harith were Sahabah. Abu Bakrah in particular was a prominent Sahabi, whose ahadith are documented in the two Sahihs, and in all other authoritative Sunni books, in abundance. Of special interest is the fact that Abu Bakrah was the main complainant against al-Mughirah, and he never repented from it. After being lashed by ‘Umar, he still reiterated his claim that al-Mughirah was an adulterer. ‘Allamah al-Albani copies a further report in this regard:

Then he (al-Bayhaqi)11 recorded through the route of ‘Uyaynah b. ‘Abd al-Rahman from his father from Abu Bakrah, and he mentioned the story of al-Mughirah, and (then) said:

We got to ‘Umar, may Allah be pleased with him, and Abu Bakrah testified, as well as Nafi’ and Shibl b. Ma’bad. When Ziyad was called, he said, “I saw a disgusting act.” Therefore, ‘Umar, may Allah be pleased with him, said Allah Akbar, and thereby summoned Abu Bakrah and his two companions and beat them. So, Abu Bakrah said, that is, after he had been punished, “I SWEAR BY ALLAH, I am saying the truth. He (al-Mughirah) did what we have testified against him about.” Therefore, he (‘Umar) intended to beat him (again). But, ‘Ali said, “If you beat this one, then you must stone that one.”

Its chain is sahih too. ‘Uyaynah b. ‘Abd al-Rahman is Ibn Jawshan al-Ghaṭfani and he is thiqah (trustworthy), like his father.12

By all accounts therefore, all ahadith by Abu Bakrah must be thrown away by the Ahl al-Sunnah wa al-Jama’ah as fairytales of a “liar”. It is the Order of Allah, as long as he is believed to have failed to prove his charge against al-Mughirah. This is where the great dilemma hides for our Sunni brothers. Allah has stated:

Those who accuse chaste women, and do not produce four witnesses, flog them with eighty stripes, and reject their testimony FOREVER. THEY INDEED ARE THE LIARS, EXCEPT THOSE WHO REPENT thereafter and make corrections. Verily, Allah is Oft-Forgiving, Most Merciful.13

Three people testified against al-Mughirah b. Shu’bah for adultery. But Ziyad recoiled. So, ‘Umar punished the three (with lashing), and said to them, “Repent, and your (future) testimonies will be accepted.” So, two of the men repented but Abu Bakrah did not repent. Therefore, his testimonies were no longer accepted. Abu Bakrah was a maternal brother of Ziyad. When what happened in the case of Ziyad occurred, Abu Bakrah swore that he would never again speak to Ziyad. As such, he never again spoke to him till his death.15

The chain is sahih, and has been so declared by the top muhadithun of the Ahl al-Sunnah. Imam Muslim (d. 261 H), for instance, has relied upon this chain in his Sahih:

He must be asked to repent. If he does, his future testimonies are accepted.

If he refuses to repent, then he becomes a liar in the Sight of Allah, and his testimonies must be rejected till the Hour.

Abu Bakrah accused al-Mughirah, ‘Umar’s close friend and governor over Basra, of adultery, and presented four eye-witnesses (including himself).

All four witnesses came all the way from Iraq to modern-day Saudi Arabia to testify against al-Mughirah in a case of adultery.

However, ‘Umar enticed and intimidated the fourth of them, just as he was about to give his testimony. He (the fourth witness) thereby “recoiled” and made ambiguous, ambivalent statements instead.

So, the case against al-Mughirah failed due to the fourth witness’s action.

Abu Bakrah and the other two witnesses therefore were whipped by ‘Umar. They were thereafter asked by him to repent so that their future testimonies became acceptable. The other two repented (most probably from pressure), while Abu Bakrah swore by Allah that he was truthful in his testimony against al-Mughirah. He preferred to be branded “a liar” by the state, and that his future testimonies be rejected, rather than to falsify what he knew to be the truth.

Abu Bakrah also believed that Ziyad (his maternal brother), who “recoiled”, had wronged him terribly. So, he stopped speaking to Ziyad from that moment till his death!

Whoever believes that Abu Bakrah was wrong in his testimony must also accept that he was “a liar” in the Sight of Allah, due to his refusal to repent. The Qur’an is very explicit in this regard, and gives no exception. As a result, such a person must reject all of Abu Bakrah’s ahadith.

However, the Ahl al-Sunnah consider Abu Bakrah to be perfectly trustworthy in everything he said, before and after the incident! Yet, they maintain that ‘Umar was correct to have whipped him!

But, it was either ‘Umar treated Abu Bakrah unjustly, or Abu Bakrah was truly a liar in the Sight of Allah. There is no third option to it.

Our Sunni brothers want to eat their cake and still have it. However, they can only do one of both. Their position on Abu Bakrah is a strategic do-or-die affair, which they can never let go. This, in reality, merely deepens their dilemma. If they accepted that Abu Bakrah, a prominent Sahabi, was a liar in the Sight of Allah, then they would have opened a door that could only lead to the complete collapse of their entire religion in no time! Yet, their pro-Abu Bakrah stance only fuels the theory that al-Mughirah was truly guilty of adultery, but that ‘Umar deliberately manipulated the judicial system to shield his dear friend from justice. Moreover, in the course of doing that, the khalifah inflicted immense injustice upon Abu Bakrah for telling the truth.

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